Working Paper No. 06-46:
Should International Law be Part of Our Law

Author(s):

Abstract:

The potential displacement of domestic law by international law has become a major topic of debate among both scholars and jurists. But the growing literature on the subject has largely ignored the fact that most international law is generated by undemocratic political processes. In this Article, we seek to fill this void by systematically analyzing the impact of the democracy deficit of international law on the desirability of allowing international legal rules to supplant American domestic law.

International law that has not been ratified by domestic political processes - what we refer to as raw international law - has a particularly severe democracy deficit because it is not subject to any kind of electoral accountability. In addition, international lawmaking processes are generally less transparent to the public than domestic ones, further undermining democratic control of its content. We contend that the democracy deficit of raw international law is a strong consideration weighing against allowing it to displace American domestic law.

The Article addresses multiple factors that contribute to the democracy deficit. We consider the role of unrepresentative publicists and international jurists in shaping international law. We also look at the materials from which they infer international law rules and find that they are influenced by nondemocratic and even totalitarian nations. Even the periodic acceptance of these norms by democratic nations is often little more than cheap talk. We offer social science data that suggests citizens are less familiar with the international than the domestic lawmaking process, thus reducing the transparency and democratic accountability of the former. Finally, we show that domestic application of raw international law has the potential to diminish the exit rights of citizens, thereby preventing them from voting with their feet and further undermining popular control over public policy.

We then review in detail the different doctrines by which raw international law may be used in domestic jurisprudence. We argue that in each case the low quality of the processes that generate international law militate against its displacing or supplementing law made through our domestic processes.

Not only is international law likely to be worse than United States law for Americans because of its democracy deficit, but foreigners too may be better off if the US refuses to incorporate raw international law into its domestic legal system. This possibility has also been largely ignored by the previous literature. Because of its structural position in the international system, the United States is likely to generate public goods, including good legal norms, for the rest of the world. We, of course, do not believe that United States laws that affect foreigners are likely to be perfect, but only that they are likely to be better on average than raw international law. We thus show that strict dualism - the proposition that international law should not penetrate the domestic legal regime without express domestic authorization - is a peculiarly suitable constitutional structure for the United States, precisely because it a democratic superpower with global reach.